ATTORNEY FOR APPELLANT
Christopher M. Goff
Huntington, Indiana
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Barbara Gasper Hines
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
BRUCE A. JIOSA, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 35S00-9910-CR-619
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE HUNTINGTON CIRCUIT COURT
The Honorable Mark A. McIntosh, Judge
Cause No. 35C01-9808-CF-00042
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
October 2, 2001
BOEHM, Justice.
Bruce Jiosa was convicted of molesting his five-year-old daughter. In
this direct appeal he contends that the trial court erred when it excluded
testimony as a sanction for violation of a pretrial witness separation
order. Because we agree that this was reversible error we do not address
the other issues Jiosa raises. We reverse and remand for a new trial.
Factual and Procedural Background
Jiosa’s daughter had lived with her mother, Peggy Morgan, until March
1998, when child welfare workers, concerned that Morgan neglected the five-
year-old girl, removed her from her mother’s custody. Shortly thereafter,
the daughter’s foster mother noticed that the daughter positioned her dolls
as if they were engaging in oral sex, and on one occasion the daughter
herself simulated oral sex acts on a doll. Child welfare authorities were
alerted and an investigation ensued. On April 1, 1998, Dr. Duane
Hougendobler examined the girl and found physical symptoms that led him to
conclude that “something had been inserted” into her vagina.
In August 1998, Jiosa was charged with child molestation and also as a
habitual offender. Pursuant to Indiana Rule of Evidence 615, Jiosa filed a
motion for the separation of the State’s witnesses. The State in turn
moved for the separation of all the witnesses. There is no written order
granting these motions. The chronological case summary recites that the
trial court granted the motions, ordering “that the witnesses in this cause
shall remain outside the courtroom and from within the hearing of the
evidence in this cause until after such witnesses have testified and have
been excused from giving further testimony.”
On the first day of trial, Dr. Hougendobler testified about the
symptoms he had identified during his examination of the girl. Later that
afternoon Jiosa’s daughter, age seven at the time of trial, testified that
Jiosa had had intercourse with her at Morgan’s home. At the conclusion of
the first day, a crowd that included Morgan and Jiosa’s parents gathered
outside the courtroom. Morgan, who had been excluded from the courtroom
under the separation order, overheard Jiosa’s father shout to Jiosa’s
mother, who was “very hard of hearing,” details of some of the testimony
given that day. It is not clear from the record exactly what testimony was
conveyed to Morgan. Nor is it clear from which witness or witnesses that
testimony might have originated. It is clear that Morgan then sought out
the prosecutor and asked her if the father’s account of the victim’s
testimony was accurate. Morgan next approached Jiosa’s counsel and told
him that she had observed her daughter engaging in behavior by herself that
could have caused the symptoms observed by Dr. Hougendobler.
Jiosa attempted to introduce this evidence at trial the next day, but
the trial court excluded any testimony from Morgan as having been tainted
by a violation of the separation order. Subsequent to this exclusion,
Jiosa requested permission to make an offer to prove in question and answer
form. The court refused, and Jiosa moved for a mistrial. The court denied
that motion as well. The jury convicted Jiosa on the child molestation
count and found him to be a habitual offender[1]. The trial court
sentenced Jiosa to an enhanced term of 50 years on the molestation charge
and an additional 30 years on the habitual offender charge, to run
consecutively.
Separation of Witnesses
Jiosa challenges the exclusion of Morgan’s testimony on two grounds.
First, he argues that Morgan did not violate the separation order merely by
overhearing a discussion between two spectators. Second, he argues that
even if the order was violated, the trial court abused its discretion by
excluding Morgan’s testimony as a remedy. We review the exclusion of
evidence based on a violation of a separation order for abuse of
discretion. Goolsby v. State, 517 N.E.2d 54, 61 (Ind. 1987). In the
present case, the victim’s symptoms were offered as proof that she had been
abused. Morgan’s testimony offered an alternative explanation for those
symptoms. As such, if credited, it was extremely relevant.
Through no fault of her own, Morgan was in the courthouse hall, where
she had every right to be, when she overheard Jiosa’s father shouting
details of the testimony given in court that day. She realized the
victim’s physical symptoms were relevant to the case and approached defense
counsel with information that, if credited, would offer an alternative
explanation for those symptoms. It is not obvious that this incident
constituted a violation of the separation order, at least not by Morgan.
It appears from the record that Morgan did not seek out information
concerning the victim’s testimony. Rather, she was innocently put in a
position where it became clear to her that she had knowledge that was
relevant to the outcome of the trial. However, there may well have been
admonitions to witnesses that do not appear in the record, and the trial
judge regarded this conduct as a violation.
Assuming there was a violation, the critical fact is that there is no
suggestion Jiosa had anything to do with any violation of the order.
Indiana Rule of Evidence 615 was adopted in 1994. It sets out the
circumstances in which a separation order is to be given, but it does not
address the remedy for a violation. Accordingly, pre-1994 cases are
instructive. It has long been held an abuse of discretion to refuse to
permit the testimony of a witness due to a violation of a separation of
witnesses order if the party seeking to call the witness is without fault
in the violation. Thomas v. State, 420 N.E.2d 1216, 1219 (Ind. 1981) (“In
the case at bar, there is no evidence that the State had colluded with the
witness to violate the court order. Furthermore, it has been held to be
prejudicial error ‘to refuse to permit such a witness to testify where the
party calling the witness is not at fault for such violation.’”) (quoting
Brannum v. State, 267 Ind. 51, 56, 366 N.E.2d 1180, 1184 (1977)). This is
a longstanding doctrine. State ex rel. Steigerwald v. Thomas, 111 Ind.
515, 517, 13 N.E. 35, 35-36 (1887) (citations omitted), announced:
Where a party is without fault, and a witness disobeys an order
directing a separation of witnesses, the party shall not be denied the
right of having the witness testify, but the conduct of the witness
may go to the jury upon the question of his credibility. . . . In
another text-book a very thorough review of the authorities was made
and it was said: “But it may now be considered as settled that the
circumstance of a witness having remained in court in disobedience to
an order of withdrawal, is not a ground for rejecting his evidence,
and that it merely affords matter of observation.”
More succinctly, as Judge Miller puts it, “if a party is denied the
use of the witness’s testimony, it is the party, rather than the witness,
who is punished for the witness’s violation.” 13 Robert Lowell Miller,
Jr., Indiana Practice, § 615.104, at 287 (2d ed. 1995). See also Taylor v.
State, 130 Ind. 66, 70, 29 N.E. 415, 417 (1891); Burk v. Andis, 98 Ind. 59,
64-65 (1884); Cordray v. State, 687 N.E.2d 219, 222-23 (Ind. Ct. App.
1997); cf. Halbig v. State, 525 N.E.2d 288, 292 (Ind. 1988); Brannum v.
State, 267 Ind. 51, 56, 366 N.E.2d 1180, 1183 (1977); McCoy v. State, 241
Ind. 104, 119, 170 N.E.2d 43, 50 (1960); Heeter v. State, 661 N.E.2d 612,
615 (Ind. Ct. App. 1996); Alexander v. State, 600 N.E.2d 549, 553 (Ind. Ct.
App. 1992); Gamble v. State, 591 N.E.2d 142, 145 (Ind. Ct. App. 1992); Hawn
v. State, 565 N.E.2d 362, 366 (Ind. Ct. App. 1991).
This common law presumption was not changed by the adoption of the
Rules of Evidence. First, the new rule is modeled after the Federal Rules
of Evidence.[2] Although there is some authority to the contrary, several
federal circuits do not authorize the exclusion of testimony for a
violation of a separation order unless there is consent, connivance,
procurement, or knowledge of the party seeking the witness’ testimony.
United States v. Friedman, 854 F.2d 535, 568 (2d Cir. 1988); accord United
States v. Hobbs, 31 F.3d 918, 922 (9th Cir. 1994) (citations omitted)
(“[I]t is usually an abuse of discretion to disqualify such a witness
‘unless the defendant or his counsel have somehow cooperated in the
violation of the order.’”); United States v. Jimenez, 780 F.2d 975, 980
(11th Cir. 1986); United States v. Blasco, 702 F.2d 1315, 1327 (11th Cir.
1983); United States v. Gibson, 675 F.2d 825, 836 (6th Cir. 1982); United
States v. Schaefer, 299 F.2d 625, 631-32 (7th Cir. 1962). But see United
States v. Magana, 127 F.3d 1, 6 (1st Cir. 1997) (allowing exclusion of
testimony for inadvertent violation by prosecutor); United States v.
Buchanan, 787 F.2d 477, 485 (10th Cir. 1986) (basing decision to admit
testimony on prejudicial effect on the defendant). Given these precedents
under the federal rule, the adoption of a rule modeled after the federal
rule provides no basis to alter the common law presumption that it is an
abuse of discretion to exclude witnesses for violations of a separation
order when the party seeking to call the witness had no part in the
violation of the order.
Nor does this presumption eliminate effective tools for enforcement of
separation orders. Trial courts may issue contempt citations and permit
evidence of witnesses’ noncompliance to impeach their credibility. They
may exclude witnesses if the party is at fault or the testimony does not
directly affect the party’s ability to present its case. See Rowan v.
Owens, 752 F.2d 1186, 1191 (7th Cir. 1984); Gibson, 675 F.2d at 836 n.6.
It is noteworthy that the separation order does not prohibit counsel
from consulting with the witness. Hightower v. State, 260 Ind. 481, 485-
86, 296 N.E.2d 654, 658 (1973); Lutz v. State, 536 N.E.2d 526, 529-30 (Ind.
Ct. App. 1989), trans. denied. The issue is explored in some depth in the
various opinions rendered in a recent en banc decision from the Fourth
Circuit. United States v. Rhynes, 218 F.3d 310 (4th Cir. 2000). Some of
the concurrences and dissents in Rhynes took the view that an attorney may
not act as a “conduit” among witnesses. But all agreed that it is
appropriate for attorneys to discuss factual matters with their witnesses
without describing the testimony of other witnesses.
Consistent with even the most restrictive view, the Indiana Court of
Appeals has stated that counsel preparing witnesses are not to describe the
testimony of other witnesses in the face of a separation order. Cf. Lutz,
536 N.E.2d at 529. This Court has not spoken on the issue and we do not
need to resolve it today. Even if the most restrictive view of a
separation order is the rule under Indiana Rule of Evidence 615, it is
clear that Jiosa’s attorney might have elicited the relevant information
from Morgan without anyone’s violating the order. The same is of course
true if Indiana ultimately follows a less restrictive rule. Even under the
most restrictive view, nothing would prevent Jiosa’s counsel from asking
Morgan if she knew of any explanation for her daughter’s injuries. If so,
Morgan would presumably have responded and would have given the excluded
evidence. The trial court’s handling of the apparently inadvertent
encounter with Jiosa’s father precluded this possibility. Either absence
of fault on the part of the offering party or extreme significance of the
evidence renders it an abuse of discretion to exclude testimony based on an
order. In this case, we have both.
Finally, the dissent asserts that Morgan’s volunteering her testimony
to Jiosa’s attorney shows that she “planned to change her testimony.”
There is no privilege to the conversation between Morgan and Jiosa’s
attorney, and the facts the dissent cites would not be protected as the
attorney’s work product. Morgan’s credibility in light of any change or
supplement to her testimony is a matter for the jury to resolve. The trial
judge is not given discretion to exclude testimony on the ground, however
plausible, that he does not find it credible.
We hold that the trial court abused its discretion in excluding
Morgan’s testimony.
Conclusion
The judgment of the trial court is reversed, and this action is
remanded for a new trial.
DICKSON and RUCKER, JJ., concur.
SULLIVAN, J., dissents with separate opinion in which SHEPARD, C.J.,
concurs.
Attorney for Appellant
Christopher M. Goff
Mills, Northrop & Goff, LLP
Huntington, IN
Attorneys for Appellee
Karen M. Freeman-Wilson
Attorney General of Indiana
Barbara Gasper Hines
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
BRUCE A. JIOSA,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 35S00-9910-CR-00619
)
)
)
)
)
)
APPEAL FROM THE HUNTINGTON CIRCUIT COURT
The Honorable Mark A. McIntosh, Judge
Cause No. 35C01-9808-CF-00042
ON DIRECT APPEAL
October 2, 2001
SULLIVAN, Justice, dissenting.
I respectfully dissent from the Court’s conclusion that Jiosa is
entitled to a new trial. I do not think that the trial court committed
reversible error when it excluded the testimony of the victim’s mother,
Peggy Morgan, after determining that she had violated an order separating
the witnesses.[3]
The Court assumes for purposes of analysis that Morgan violated the
separation of witness order when she overheard Jiosa’s parents discussing
the victim’s testimony. The Court holds that despite Morgan’s violation,
she was entitled to testify because “there is no suggestion that Jiosa had
anything to do with any violation of the order.” Slip op. at 5.
In my view, mandating the admissibility of testimony in such
circumstances, first, is contrary to our evidence rules[4] and, second,
fails to recognize the trial court’s superior position when it comes to
balancing fairly the respective interests of the parties.[5]
It is true, as the Court points out, that some cases predating
adoption of the Indiana Rules of Evidence support the proposition that a
party moving to exclude a witness must show that the other party is at
fault for the separation violation. However, we included no language in
Evidence Rule 615 requiring a finding of fault before a witness may be
excluded. In my view, that was because the Rule represents a change from
the common law of separation orders.
The Rule’s major change from the common law is that trial courts are
now required to grant a separation order when a party requests one. This
change removes some of the control over separation orders that trial courts
enjoyed at common law and places that control with the parties.[6]
Retaining fault as a per se rule conflicts with this change in philosophy.
If parties are now to have control, then the trial court needs a full range
of sanctions to assure the parties exercise that control.
Put differently, if the trial court cannot exclude the testimony of a
witness who violates a separation order unless the party offering the
testimony is at fault, that party has absolutely no incentive to assure
compliance with the order. Indeed, undermining the “parties in control”
philosophy of the Rule, the incentive will be for parties to do as little
supervising as possible. So long as “there is no suggestion [that they
have] anything to do with any violation of the order,” the trial court will
be unable to exclude their witnesses’ testimony.
Without the sanction that gives parties incentives to police their own
witnesses, compliance with separation orders is jeopardized. For many
witnesses, like Morgan here, the temptation to know what other witnesses
are saying at trial will be great. Outside of the extraordinary cases
where a contempt citation is possible, witnesses have little stake in
complying with the rule on their own.
Of course, a party’s “fault” should play a role in the trial court’s
analysis of the proper remedy for a violation of a separation order.
Likewise, in appellate review of a trial court’s exclusion remedy, fault on
the part of the party offering the witness is an important factor to
consider. But Rule 615 does not provide, and should not be interpreted to
provide, that absent a showing of fault a court abuses its discretion per
se if it excludes a witness who violates a separation order.
When there is an allegation that a separation order has been violated,
it is the trial judge who conducts the investigation of whether a violation
has occurred and, if so, whether the witness plans to condition his or her
testimony based on what he or she learned. This is a quintessential trial
management task, reflecting the fact that the trial judge is in the best
position to evaluate whether testimony is to come in. Indeed, in Clark v.
State, 480 N.E.2d 555, 558 (Ind. 1985) (DeBruler, J.), we said that “[o]nce
a separation of witnesses has been ordered, what to do about a violation of
the order is a question which is to be resolved by a study of affected
interests and their fair accommodation. The trial court’s rulings will not
be disturbed unless there is a clear abuse of that discretion.” In Jordan
v. State, 656 N.E.2d 816, 818 (Ind. 1995), we said that “[t]he
determination of the remedy for any violation of a separation order is
wholly within the discretion of the trial court. … We will not disturb a
trial court’s decision on such matters absent a showing of a clear abuse of
discretion.”), reh’g denied. In both those cases – and others like them –
we found that the trial court properly exercised its discretion when it
allowed witnesses to testify who had violated separation orders. We found
this to be within the trial court’s discretion because of its ability to
balance fairly the interests of the parties. Clark, 480 N.E.2d at 558.
Just as trial courts are in a superior position to decide when to allow
such testimony, I believe they are in a superior position to decide when to
exclude it.
The record shows that Morgan contacted the prosecutor in an attempt to
confirm the description of the victim’s testimony that she heard from
Jiosa’s father. She also told defense counsel that she would now offer
testimony that she had not mentioned previously. These facts demonstrate
that Morgan planned to change her testimony in response to her exposure to
another witness’s testimony. Moreover, she took these actions after
hearing about the victim’s testimony, which was the centerpiece of the
State’s case. This type of taint is precisely the harm that separation
orders under Rule 615 are intended to prevent. From this record, the trial
court could conclude that Morgan would improperly alter what she would say
on the stand because of her exposure to this important testimony. The
trial court should not be limited in its range of sanctions for such
misconduct.
SHEPARD, C.J., concurs.
-----------------------
[1] The convictions supporting this finding were (1) operating a motor
vehicle while a habitual traffic offender and (2) nonsupport of a dependent
child.
[2] The two rules are nearly identical. The only differences are that the
Indiana Rule contains the language “or discuss testimony with” when
describing prohibited conduct and that the Federal Rule contains an
additional exception to those that may not be excluded.
[3] Both the State and Jiosa asked the trial court to order that the
witnesses be excluded from the courtroom and prohibited from discussing the
case with each other. Indiana Rule of Evidence 615 mandates that a court
give such a separation order when a party seeks one:
At the request of a party, the court shall order witnesses excluded
so that they cannot hear the testimony of or discuss testimony with
other witnesses, and it may make the order on its own motion. This
rule does not authorize the exclusion of (1) a party who is a natural
person, or (2) an officer or employee of a party that is not a
natural person designated as its representative by its attorney, or
(3) a person whose presence is shown by a party to be essential to
the presentation of
the party’s cause.
[4] See Ind. Evidence Rule 615.
[5] See Clark v. State, 480 N.E.2d 555, 558 (Ind. 1985).
[6] Cf. Joyner v. State, 736 N.E.2d 232, 244 (Ind. 2000) (noting that
the defendant “acknowledged to the trial court that it was his
responsibility to advise his witnesses not to talk about the case and to
explain the separation order. … Contrary to his contention in this appeal,
[the defendant] was at least partially at fault for [the witness] violating
the order.”).